Defendant Gone Wild

August 25, 2009

"He has put a lot of this foolish behavior behind him," said Joe Francis's lawyer in 2007, but guess what? He had plenty left. Back then, Mr. Francis, who some of you may know as the purveyor of "Girls Gone Wild" videos, was about to do a month in jail on contempt charges for yelling obscenities during a mediation. His lawyer was suggesting that Francis had turned over a new leaf, but that has now been called into question.

On June 11, a federal magistrate judge recommended that a default judgment be entered against Francis in another case, a proposed class action on behalf of young women that Francis allegedly exploited by filming them allegedly going wild. Plaintiffs there had moved for default on the grounds that Francis was not cooperating with discovery requirements. The district judge had deferred ruling on that motion to see how things might go at an upcoming deposition. He told Francis's current attorney (his third in the case) that "the only thing that is saving your client right now is the optimism I have that your appearance [to represent him here] is going to be a turn for the better and that our old problems are over with."

Since you are reading about this on Lowering the Bar, you can probably guess how that turned out.

Francis showed up late, failed to produce documents, and then, once the questioning started, seemed to experience a severe decline in brain function, operating well below even the Francis baseline. The cynical magistrate suspected Francis of faking, of course, charging that he was simply "pretend[ing] not to know the meaning of common words to avoid [giving] a straight answer." True, these were words that Francis certainly should know the meaning of by now, like "felony" and "jail":

Q. Have you ever been convicted of a felony?

A. I don't understand what that means.

…

Q. You don't understand what being a convicted felon is?

A. No. Can you explain it to me?

Q. Did you serve any time in jail?

A. What do you mean "serve"?

…

Q. Do you know what a prisoner is?

A. No.

Q. Do you know what a cellmate is in jail?

A. No.

Q. Do you know what a jail is?

A. Sort of.

For those of you keeping score, the correct answers would have been yes, yes I do, yes, yes, yes, and "where I will probably be spending the next few years."

Francis also pleaded ignorance of his own finances and had trouble identifying his own signature on a plea agreement. Asked if he was a defendant in any other lawsuits, he responded: "I could be. . . . I don't really pay attention to litigation." (He is.) He asserted his Fifth Amendment rights in response to many questions, despite a ruling that he had waived that privilege. "In summary," the magistrate concluded with some understatement, "no information was obtained by this deposition."

Best (or worst) of all, after the plaintiffs' counsel gave up and terminated the deposition, Francis took the opportunity to do what he does best (or worst): he actually took the camera away from the court videographer and started shooting video of a female lawyer for the plaintiffs. (In case you're wondering, she just stared at him.)

Not surprisingly, after this nonsense, the magistrate recommended that the motion for default be granted. But, and this was surprising, District Judge Richard Smoak deferred again, apparently so Francis could be given one more chance. Since Judge Smoak is the same judge who jailed Francis for contempt, and who was previously accused publicly by Francis of having "gone wild," it seems remarkable that he is cutting any slack for Francis at this point.

As bad as this incident was, though, it might have been less bad than the deposition he gave in a lawsuit against him by Wynn Casinos to collect on a $2 million gambling debt. In that deposition, Francis not only engaged in many of the same antics noted above, but also, according to the casino's attorneys, made "repeated attempts to disrupt the deposition with flatulence."